Farmers' Mutual Fire Insurance v. Moyer

1. Where a building is insured under a valued policy of insurance, by the terms of which the insurers undertake to pay the amount of the policy within three months after notice of loss, and a total loss of the building occurs, preliminary notice whereby the company is informed of such loss is sufficient without giving the more formal proofs. 2. Where in such case the contents of a barn were insured by the same policy as the barn itself, and the directors of the company insuring upon receiving preliminary notice of tho loss of such contents, proceeded to pass a resolution denying the liability of the company on other grounds than tho want of notice: Held, that tho question was properly submitted to the jury whether by this action the directors had not waived the necessity of presenting formal proofs of loss. 3. The by-laws of an insurance company prohibited the insuring of any building “ situated within fifty yards of a railroad on which steam-power is employed, or of any forges, foundries, furnaces, rolling-mills, powder-mills, paper and oil-mills, cotton-mills, or in general, any mills, factories or machineries driven by steam-power,” and provided that if the owner of any insured building ‘‘should convert it to some other purpose, or should carry on therein any of the trades” therein before set forth, tho policy on his premises should be deemed of no foree or effect. Held, that the use of a portable steam-engine near a barn, for the purpose of threshing grain within the structure, was no such violation of the by-laws of the company as would vitiate a policy of insurance upon the barn aforesaid. 4. In an action brought upon such policy for a loss occasioned by the burning of the barn in consequence of the explosion of the steam-engine, the court left it to the jury, to say whether the insured had materially increased the risk of fire by using the engine, instructing them that if they were of opinion that he had, they should find for the company defendant. Held, that this instruction was as favorable as the defendant could ask.

Error to tho Court of Common Pleas of Schuylkill county: Of January Term 1881, No. 164. This was an action of covenant, brought February 26th 1876, by George K. Moyer against the Farmers’ Mutual Fire Insurance Company of Schuylkill county, upon a policy of insurance insuring, inter alia, a frame barn for $1500, and the contents for $1000, issued April 5th 1869, for tho term of ten years. Pleas: non est factum, covenants performed, covenants performed absque hoc, with leave to give special matter in evidence. Upon the trial, before Pershing, P. J., there was no serious dispute as to the material facts, which were as follows:— The company defendant was incorporated by a special act of the legislature in 1850, Pamph. L. 45, and was organized and did business upon the mutual plan. Article 26 of the by-laws provides as follows: “ The following property can, under no circumstance, be insured by this company, viz.: All buildings situated within fifty yards of a railroad on which steam-power is employed, as forges, furnaces, rolling-mills, paper and oil-mills, cotton-factories or machineries driven by steam-power,” * * * Article 34 provides: “ If the owner of an insured building should convert it to some other purpose, or should carry on therein any of the trades specified in article 26, the policy of such insured building shall not be considered valid or binding upon the company for such length of time as it shall be appropriated to such purposes; but a man may employ necessary laborers or mechanics of all description in the house or other buildings for the purpose of renewing fir Improving them, without forfeiting any of the advantages guaranteed him by his policy.” Section 8 of the charter provides as follows: “ Suits at law may be prosecuted and maintained by any member against the said company for losses and damages by fire, if payment be withheld or refused for more than three months after the company shall have been notified of such losses. Wo member of the company, not being in his individual capacity a party to the suit, shall be incompetent as a witness on account of being a member of the company.” Plaintiff’s barn was destroyed by fire Wovember 20th 1875, caused by the explosion of the boiler of a small portable steam-engine which the plaintiff had hired for the purpose of threshing his crops. The engine, boiler and the fire under it were placed at a distance of about thirty-two feet from and outside of the barn, and the machinery threshing the crops was within the barn, driven by a strap or belt communicating with the steam-engine outside. The engineer lighted the fire about six o’clock in the morning, and went to breakfast. In about fifteen minutes afterwards the explosion 'occurred, and in a few minutes the barn and its contents were on fire. The plaintiff testified: “We were sitting at the table at breakfast; the engineer ate but little, and he went out before it exploded, but he did not reach it, I suppose. The engine was on a small wagon, and it tore loose and broke the barn doors in ; the doors were all shut in the evening and everything was in the inside; there was nothing outside. As soon as I came out I saw that the barn was on fire.” The engineer testified: “ Saturday morning I went there and got some chips and one thing and another and started a fire and put on-a couple of shovels of coal, closed the door and went in to breakfast. We often did that, for it would be half an hour, and we would not have steam up then. We went in, took our.breakfast, and when I came out and looked out of the door I found it did not -work as usual, and when I got five or six steps from the porch it exploded. We ran out and saw we could not do anything, but the fire was all through the barn. We got the cattle out, and everything burnt down except the cattle. It may have been twelve or fifteen minutes I was away from the engine.” It was in evidence that at the time when the contract of insurance was made, in April 1866, threshing with steam-engines as a motive power was unknown, such mode of threshing having been introduced about the year 1874. Also, that Moyer, the plaintiff, at a meeting of the directors, stated that one Mantz, had put a steam-engine in his tannery, which Moyer said was entirely against the rules of the company, particularly by-law 26. Then he made a motion, aftsr it was fully discussed, and Mr. Ebling was instructed to inform Mr. Mantz that such was the case, that his insurance was to be null and void, as he had violated the laws of the company, and it was so placed on the minutes. Mr. Mantz’s insurance money was subsequently returned to him. The policy contained, inter alia, the following provision : “ The loss or damage to be estimated according to the true and actual value of the property at the time the same shall happen, and to be paid within three months after due, and proof thereof made by the insured, in conformity to the charter and by-laws.” The plaintiff gave notice of the fire to the secretary of the company on the 23d of November 1875, three days after the fire, and furnished the formal proof of loss December 7th 1875. In the mean time, at a meeting of the directors, on November 27th 1875, the plaintiff appeared, and what then transpired is thus recorded in the minutes r “Next in order was to hear the claims of George K. Moyer, whose bam and the contents were totally destroyed by fire on Saturday, November 20th 1875, on account of a steam-engine, which was used for threshing and exploded. Henry S. Kern, one of the viewing committee, was noticed on the 24th inst. to examine the fire, hut did not receive the letter. George K. Moyer affirmed and says that the boiler exploded and that set the barn on fire. On motion of G. S. Ebling it was moved and seconded that the barn and contents of George K. Moyer shall not be paid, except compelled by law.” The plaintiff presented, inter alia, the following point: “ That the by-laws 26 and 84 do not contain any prohibition of the use of a steam threshing-machine in the manner it was shown under the uiieontradicted evidence of this caso the same was used.” Ans. “ We would so understand the evidence, but it is for your consideration.” The defendant presented, inter alia, the following points: 1. That under the uncontradicted evidence in this ease, no proof of loss was furnished to the company by Moyer till the 7th day of December 1875, and as by the terms of the policy the insurance was not payable till three months after such proof was furnished, and the suit in this case was instituted on 26th day of February 1876, the verdict of the jury must be for the defendant, the suit having been brought prematurely. The court answered this point substantially as follows: The policy of course is the contract between the parties, and they are bound by its terms and conditions. The construction we put upon the clause which provides that the loss is “ to be paid within three months after due, and proof made thereof by the insured in conformity to the charter and by-laws,” is that the evidence of the loss must be furnished three months before the suit is brought, unless the company did something to waive it. The point made on the part of the plaintiff is, that as the barn was a total loss, and the company had notice of the total loss more than three months before the suit was brought, the barn itself cannot be involved in this point. It has been held when the contents have been destroyed, to 'simply say that the barn was destroyed “and its contents,” is not sufficient, but notice must be given of the contents in detail which were in the barn at the time of the fire. It would seem that this was not complied with until in December, by the notice prepared by Mr. Hughes, in which the contents were specified. This would be less than three months before the bringing of this suit, and would prevent a recovery so far as the contents of the barn are concerned, unless the company did something to waive the production of notice at an earlier date, or the production of any notice whatsoever. We think there is a question for your consideration at this point. The board of directors met on the 27th of November, and took into consideration a notice which they had received, as it would appear from their minutes, in reference to the loss sustained by Moyer of this property, under the policy of insurance which the company had issued to him. It would appear from Moyer’s testimony that he was present. They adopted a resolution not to pay him, and that they would not recognize any liability whatsoever, upon the ground that he had no right to take the machine upon the premises at all, not upon the ground of want of notice, but because he had violated the agreement by taking the machine upon his premises. What is the objeet of the notice ? plainly to notify the company of the contents, that so much .hay and grain, &c., were destroyed, and the value, so as to enable them to ascertain what they were to pay. But when they said that they would pay nothing, and denied any liability, was it not a waiver of any notice, as to what contents of the barn were ? If you find that by this action they waived the necessity of the notice, as required by the policy, the delay would not prevent the plaintiff from recovering here, if you find he has a right to recover. It is for you to determine whether there was a waiver. 8. “ That the true construction of the charter, policy and bylatvs prohibits the insurance of any building or barn which is located within fifty yards of any steam-engine, or within which any steam-engine is used.” Ans. “We will answer this in the negative, in view of the language employed in the by-laws, although it is a question we are not entirely clear upon as to what construction shall be placed upon it.” 10. “ That under all the evidence in this case the verdict of the jury must be for the defendant.” Ans. “We decline to so instruct you, as it -would be taking the whole case from your consideration.” Verdict and judgment for the plaintiff for §2492.47. The defendant took this writ of error assigning for error the answers to the points as above given.